The decision Griffiths v Kerkemeyer (1977) 139 CLR 161 enabled the recovery of damages by the plaintiff for care provided gratuitously, even where (Kars v Kars (1996) 187 CLR 354) the gratuitous provider is the defendant. In Van Gervan v Fenton (1992) 175 CLR 327 at 335-8 Mason CJ, Toohey and McHugh JJ discussed the “sound policy reasons” underpinning the principle. On the other hand, in Grincelis v House (2000) 201 CLR 321, Kirby J at 322 said that Griffiths v Kerkemeyer set the High Court “upon a path that has repeatedly demonstrated the ‘anomalies’, ‘artificiality’ and even ‘absurdities’ of the ‘novel legal doctrine’ which it adopted”, and Callinan J at 339 referred to “the incredulous expressions of delight of plaintiffs, and [the] disbelieving dismay of defendants, on being told … that there is no legal obligation in this country for [the damages] to be paid to the gratuitous career”. Section 15 of the Civil Liability Act 2002 (NSW), in restricting damages for gratuitous assistance, represents a perhaps unhappy middle ground.
In Hill v Forrester (2009) 79 NSWLR 470; [2009] NSWCA 170 at [12], [16] and [118] Tobias JA and Sackville AJA said that section 15 required “urgent” legislative attention. Assume you are a law reform body recommending changes to section 15. What changes would you make, and why? Note: you are not expected to draft a new section 15.